Restitution Discussion Group Archives
| Sender: |
Steve Hedley |
| Date: |
Thu, 6 Aug 1998 16:24:15 +0100 |
| Re: |
Was Banks Overcharging Customers |
This latest set
of issues raised by Andrew Dickinson is interesting, and I suspect is rather
closer to what Eoin was really asking in the first place.
My difficulty is that Andrew wants to ask about non-contractual,
restitutionary liabilities in the cases he is discussing, whereas I am
not sure I know what it means to say that the liabilities are restitutionary
rather than contractual.
As Robert and I have already said, contract/restitution
is not quite like tort/contract. It makes perfect sense to discuss whether
a plaintiff on facts like *Henderson* should sue in Contract or in Tort,
because the two different causes of action involve proof of different
matters : in Tort the plaintiff has to establish duty but not agreement,
time runs from damage not from breach of duty, and so on. But in the cases
we have been discussing, there is no such obvious line between action
in contract and action in restitution. The operative facts are the same.
The limitation period is the same. We cannot say merely 'one is an action
in contract and the other in money had and received' without relying on
a system of forms of action which was formally abolished over a century
ago.
So what, *in relation to the examples suggested*, does
it mean to talk about action in restitution going wider than contract
?
At 13:37 06/08/98 +0100, Andrew Dickinson wrote:
(a) if one party does not perform in accordance
with the contract but temporarily offers a different performance which
is accepted by the other party (Miles -v- Wakefield); The performance is accepted in the knowledge that it
is meant to be paid for, and there will already be considerable evidence
of what rate of remuneration the parties had in mind. Any remedy for a
quantum meruit is therefore easy to justify on contractual principles.
Why is it being suggested that we postulate a restitutionary remedy too
?
(b) if the recipient, instead of having a contractual
entitlement to retain, has contractual duty to return: (i) if A gives B (for consideration) a £5 note to keep
for him for a week. B fails to return the note. His conduct constitutes
a breach of contract. Can A maintain an action for money had and received
(failure of consideration). Must he accept B's repudiatory breach before
doing so? (ii) What if the relationship between A and B is not
bailor and bailee but customer and banker and B's obligation is not
to return the same £5 note but to pay A £5 on demand? Can B's refusal
render his initial enrichment unjust? Again, obviously there is a contractual remedy for £5.
In what circumstances would a litigant ever want to assert that there
was a restitutionary remedy for £5 ? Certainly if the matter is confined
to A and B, I can't see the point. If 3rd parties enter the picture, then
we are also up to our eyeballs in the quagmire of which claims are personal
and which proprietary (from which few emerged unscathed).
Of course,
1. There may be some nebulous sense in which there is
a restitutionary remedy, identical with the contract action. But law is
a practical science. If the restitutionary remedy adds nothing to the
contractual remedy, there seems little point in mentioning it. Or perhaps
someone on this list has seen a point to it ?
2. In all of these cases there is an unjust enrichment,
as those words are used in ordinary speech. But the same could be said
of most contract cases. One of the purposes of legal doctrine is to narrow
the range of facts and arguments that is deemed material in any one situation.
3. In some of these cases, it might be suggested that
'unjust enrichment' is in some sense a superior description of the operative
facts, better than saying that there is a contractual remedy. To which
the answer has to be that the contractual analysis got there first, by
several centuries.
Steve Hedley
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